date

5 Jan y 1807 Scotch Reform To L d
5 Jan y 1807

Scotch Reform To L d Grenville

Facienda

Juries why on appeal only

Nor is this all. In the first instance, as Your Lordship has seen, many causes are incapable of being properly tried, many others incapable of being tried at all, in the presence of /by judgement really/ formed by Juries. In the way of Appeal, there is no sort of question that may not, and with care and propriety find its way to a Jury: no question not even of all those which at present are either not presented to a jury at all, or presented to no purpose.

In the first instance, the evidence not being capable of being collected in one day /at one sitting/, was collected at divers sittings: not being capable of being collected all in one place, was collected in /at/ divers places. But in the way of Appeal, before a Judge with a Jury, as well as before a Judge without a Jury, being /having been/ already collected together and made into one mass it may be presented in that one mass: if all of it, the testament part of it, in the shape

of vivâ voce evidence so much the better: if the whole or any part of it incapable of being presented in any better shape than that of vivâ voce evidence heard [...?] and there [...?], (as, Anglicé as[?] depositions) or then epistolatory evidence (as Anglicé as the shape of one Preface[?] to a Bill) than in that best state in which it is to be had.

Not only so but in cause of the description of that which in English practice, by /the/ reason of the magnitude of the mass of evidence are excluded altogether from the benefit of Jury trial may in this way be let into a participation of it:
Similar Items
  • Title: [13 Feb y 1807 Letter IV Resolut]
    Description: 13 Feb y 1807

    Letter IV

    Resolut. 6.7.8.9

    Juries

    Lawyers Re fondness

    1. A property /feature/ which learned gentlemen fail to make the most of, to their praise as if it belonged exclusively to Jury trial, is the mode of collecting the evidence - thence the shape in which it is collected - vivâ voce examination, with cross-examination, questions arising out of the answers and so forth. This, however is not among the properties /perfections/ which contribute to their predilection for this modification of technical, to the exclusion of natural, procedure.

    The proof is very /altogether/ simple. Natural procedure employs /carries the use of/ this mode of collecting evidence to the highest possible pitch: (employs it wheresoever it is practicable.) They avoid the employment of it to the utmost of their power. /By them the use is avoided by them on every occasion on which it has been possible to avoid it./

    So far as they have found themselves at liberty, the very worst shape into which it is possible to put any thing that was ever called by the name of evidence - the very worst shape and the most opposite to Jury-trial evidence that could be found I speak of affidavit evidence - is the shape and the only shape in which they ever suffer it to become[?] before them. In this they all agree /the whole body of learning agrees/, Common Law and Equity, Spiritual and Temporal, and Spiritual, territorial and Maritime.

    But Equity, Spiritual law and Admiralty, being all of them, children of Roman law, have found themselves chained /tied/ down for the most part by their Mothers will, somewhat to the use of a less bad mode - viz: depositions: examinations vivâ voce by a Judge or Judges ad hoc, taken in secret, and with doors shut against parties and their lawyers, and consequently without the benefit of cross-examination.

    The chancellor, sitting in Westminster Hall, sitting or Judge in Equity, submitts to /wears/ the chains - these Roman chains - imposed[?] by Equity. But no sooner has the Couch[?] [...?] with Jury trial for the motto of it set him down [...?] in Lincolns Inn Hall sitting to hear to[?] causes of Bankruptcy coming in the form of Petitions, than off go the Roman chains, and he finds himself as much at his ease as any of his learned Colleagues reposing himself in the lap of affidavit evidence

    The countenance of a due[?] is not more horrible to a spendthrift, than that of a suitor is to lawyer of every sort and size, the Attorney alone excepted
  • Title: [5 Jan y 1807 Scotch Reform To L d]
    Description: 5 Jan y 1807

    Scotch Reform To L d Grenville

    Facienda

    Juries why on appeal only

    Is it the case of a redundancy of evidence? for the same reason that no verdict /a verdict/ can /not/ be given on that day, neither can it on any other. Is it the case of a mere deficiency? Here then the cause may be tried by a second Jury, but the labour of the first is thrown away.

    But not only in these incompressible causes which could not be concluded on /at/ the first day /hearing/ could the labours of these 12 men (or whatever else were the number) be thrown away, but so it would in all those causes in which there is really no dispute. But of these, as I have already had occasion to submitt the vast majority of causes is composed. In all these cases Jurymen are either nuisances or puppets. Puppets Jurymen are of use to lawyers: but neither puppets or nuisances are of use to justice.

    Under our over English system, certainly in a very considerable number of the causes that come on before Juries - I should expect to find the greater number - pictures or statues of Jurymen could be very advantageous substitutes to the originals. In one part of the number of these causes, there is nothing for any body to try: in another part, the Juries being there for show but not for use, the cause turning upon jargon, the lawyers settle it among themselves, leaving to the Jury nothing to do but to stare.

    (My Lord, though I have n't them for my motto[?], neither am I without my love for Juries. Were it to depend upon me I too would have Juries: but when I had them it should always in every case for use, in no case for mere show.)
  • Title: [1823. Sept.11. Constitutional Code]
    Description: 1823. Sept.11.

    Constitutional Code

    Ch. Quasi Jury

    Jurors.

    In intellectual and

    active aptitude this

    uniformly stands unquestionable.

    As to moral, now

    of the checks (25) which

    apply to Judge apply

    to thence.

    5. or. 1.

    Design here. 1. Adopt apt jury features. 2. Discard unapt d o. 3. Add apt ones.

    6. or. 2.

    Apt: viz. as to Quasi Jury: for one will be shown, which, though essentially apt in jury, would in Quasi Jury be mischievous.

    [Add? This is a virtual negative on laws with a Constitutional aspect. See below]

    7. or. 3.

    Prime difference to jury belongs, in a certain way, decisive power as to the ultimate result of the suit: ex. gr. acquittal in a penal suit. To a Quasi Jury, not.

    8. or. 4.

    Only in one case has Quasi Jury decisive power: and then it is not ultimately decisive.

    This is power of warranting Appeal, in cases in which English law does not: viz. in cases in which it were given absolutely to dependant, it would intolerabilize vexation and expence to prosecutors, witnesses, and Quasi Jurors: since, for delay and chance of escape, all convicts whose guilt was beyond doubt would appeal notwithstanding.

    9. or. 5.

    Reason for withholding from Quasi Jury, the decisive power of a jury. Hence judge's moral inaptitude is checked more effectually than it is in juries, or would be in Quasi juries: and

    in

    9. or. 5. contin d.

    in intellectual and active aptitude, never could the miscellaneous and inexperienced many compete with the select and experienced few.

    10. or. 6.

    As to the virtual negative possessed by the juries, here, the laws being the work of the delegates of the whole people, any negative in the hands of a miscellaneous few would be worse than useless.

    11. or. 7.

    This decisive power being withholden, none but the auditive, interrogative and communicative left, the character is little more than that of an appointed committee of the Public Opinion Tribunal, constantly present.

    12.

    Jury's decision and virtual negative excepted, it's apt features are accidentally, not necessarily connected with it these are: 1. End, bridling judge's power. 2. Publicity. 3. Lash for judge, explaining case, and showing reasons for his advice &c. 4. Evidence in the best shape.

    12 (a.)

    Features of this best shape 1. Question viva voce parties, judiciary, auditory, present 2. Put by persons interested in bringing out the whole truth: without supposition or disguise: viz. one side one half; the other the other. 3. Answers extempore, without time for supposition or misrepresentation.

    12 (a.) Contin d.

    4. Questions rising out of, and alternating with answers. 5. The whole minuted on the spot by any that will, as well as by judge. 6. Judge the same, by whom the decision grounded on it will be framed. 7. Wanting here, faculty of amendment at leisure allowed to relating witnesses as in Part y. Committees: not dangerous to truth, the original minute remaining as a standard.

    13.

    Of these features, none but might have place in a judicatory without a jury: viz. 1. Publicity it has place in English Equity Procedure in some stages. 2. So in d o. judges explanative and reason-giving lash

    3. So, evidence in best shape, in preparatory criminal examinations, justice of peace judication. But for compleat, correct and clean performance of that lash, in no case are the motives to cogent as in that of a jury.